Other Stuff

By 1997 E.piphany was a fast growing startup with customers, revenue and something approaching a repeatable business model. Somewhere that year we decided to professionalize our logo (you should have seen the first one.) With a massive leap of creativity we decided that it should it should have our company name and the letter “E” with a swoop over it.

1997 was also that year that Microsoft was in the middle of the browser wars with Netscape. Microsoft had just released Internet Explorer 3 which for the first time was a credible contender. With the browser came a Microsoft logo. And with that same massive leap of creativity Microsoft decided that their logo would have their product name and the letter “E’ with a swoop over it.

One of E.piphany’s product innovations was that we used this new fangled invention called the browser and we ran on both Netscape and Microsoft’s. We didn’t think twice about.

That is until the day we got a letter from Microsoft’s legal department claiming similarity and potential confusion between our two logos.

They demanded we change ours.

I wish I still had their letter. I’m sure it was both impressive and amusing.

I had forgotten all about incident this until this week when Doug Camplejohn, E.piphany’s then VP of Marketing somehow had saved what he claims was my response to Microsoft’s legal threat and sent it me. It read:

Response Letter to Bill Gates

Dear Bill,

We are in receipt of your lawyer’s letter claiming Microsoft’s
ownership of the look and feel of the letter “e”. While I understand
Microsoft’s proprietary interest in protecting its software, I did not
realize (until the receipt of your ominous legal missive) that one of
the 26 letters in the English language was now the trademarked
property of Microsoft.

Given the name of your company, claiming the letter “e” is an unusual
place to start. I can understand Microsoft wanting exclusive rights to
the letter “M” or “W”, but “e”? I can even imagine a close family
member starting your alphabet collection by buying you the letters “B”
or “G” as a birthday present. Even the letters “F” “T” or “C” must be
more appealing right now then starting with “e”.

In fact, considering Microsoft’s financial health and legal prowess
you may want to consider buying a symbol rather than a letter.
Imagine the value of charging royalties on the use of the dollar “$”
sign.

I understand the legal complaint refers to the similarities of our use
of “e” in the Epiphany corporate logo to the “e” in the Internet
Explorer logo. Given that the name of my company and the name of your
product both start with the same letter, it doesn’t take much
imagination to figure out why we both used the letter in our logos,
but I guess it has escaped your lawyers.

As to confusion between the two products, it is hard for me to
understand why someone would confuse a $250,000 enterprise software
package (with which we require a customer to buy $50,000 of Microsoft
software; NT, SQL Server and IIS), with the free and ever present
Internet Explorer.

Given that Microsoft sets the standard for most things in the computer
industry, I hope we don’t open the mail next week and find Netscape
suing us for using the letter “N”, quickly followed by Sun’s claim on
“J”. Perhaps we can submit all 26 letters to some sort of standards
committee for arbitration.

Come to think of it, starting with “e” is another brilliant Microsoft
strategy. It is the most common letter in the English language.

Steve Blank

EpilogueGiven later that year Microsoft ended up being a large multi-million dollar E.piphany customer all I can assume is that cooler heads prevailed (more than likely our new CEO,) and this letter was never sent and the threatened lawsuit never materialized.

Ironically, since the turn of the century Microsoft has done great things for entrepreneurs. Their BizSpark and DreamSpark programs have become the best corporate model of how a large company can successfully partner with startups and students worldwide.

Pure gold, Steve. I laughed at this one:
“Given that Microsoft sets the standard for most things in the computer industry, I hope we don’t open the mail next week and find Netscape suing us for using the letter “N”, quickly followed by Sun’s claim on “J”. Perhaps we can submit all 26 letters to some sort of standards committee for arbitration.”

I received a similar letter in the late 70s from the Recording Industry Association of America. My first start-up manufactured an “industrial strength” audio tape player and leased tapes of popular music for use in restaurants and clothing stores. We had been paying royalties to music publishers since day one, but there was no mechanism for paying royalties to record companies, so we thought it wasn’t necessary.

I sent the next few years traveling to and from Los Angeles negotiating licensing agreements, starting with the biggest players and filtering down to the little guys. It was expensive, exhausting and educational. Looking back, it was an important part of my “street degree” in business. Of course, performance royalties were a legitimate concern, while protection of the letter “e” was just plain silly.

I think people aren’t taking Microsoft’s rights seriously, or generally how important IP rights are for innovation. For example, how long has it been since we have a new letter added to the alphabet? Unless inventors have some way to make money the letters they create, the alphabet will never grow.

Part of our “Lost Decade”. See, we’d already been smoking the Win95 OEM sales pretty hard when the Office Volume Licenses came on the scene. One hit and we lost all reason. Don’t remember a thing until Dell told us no one was buying Vista, but that was only the beginning of the slide down to rock bottom.

[…] Editor’s note: The patent wars are coming to a head this week, but let’s not forget that tech has always been a lawsuit sideshow. Like this flareup from 1997 that entrepreneur and author Steve Blank shares from his days at E.piphany. […]

Steve, you should have sent Bill a copy of the novel “Gadsby”… Like their legal jargon, it too was complex to read. It is 50,000 words long and does not contain a single letter “E”.http://en.wikipedia.org/wiki/Gadsby_(novel

Steve, typically these types of infringement letters are prepared and sent out by the most junior lawyer within a company’s internal legal department or an external law firm – – sometimes even a summer law student. Its boring and tedious work, I have done it myself. These junior staffers are told to take zero risk when it comes to potential trademark confusion. So when a junior sales person or HR staffer excited comes into their office telling them about how, for example, their great uncle confused their company with another when telling them its name, the junior lawyer springs into action (this is one of the few parts they actually did teach in law school, and is often billable too, which is a double bonus).

Not surprisingly, the junior lawyer almost never stops to think about the wider situation. They figure, correctly in most cases, the cost of sending the standard form letter is almost nothing (for their client), so why not just send it. They can always back down later at no cost. (Remember these people who prepare these form letters have little or no idea what their company even does, or sells, and often could not list who the companies’ competitors are). Not surprisingly, they can and do get it wrong and often underestimate the impact of what their are doing.

Most well managed companies require a more senior level validation by someone who can actually accept to not take action before a letter is sent. Often these people, whether more senior lawyers or marketing people, get busy or are on vacation, or quite frankly, often their Admin just simply signs it for them.

I am undoubtedly making excuses for my legal colleagues, but errors do happen by otherwise talented and smart people. Also, if you think MBAs training is out of date in the modern corporate / start up world, you should see how out of date the legal profession is. Its hard to find the right lawyers, all jokes aside.

The best way to respond to nonsense is with a simple and short letter to say their couldn’t possibly be confusion by customers, and ask them to provide examples of this confusion occurring in practice. Also then say that you will have no choice other than to hold them accountable for all costs incurred as there simply couldn’t be a basis for their allegations. There is a form letter for this too to send back. (Funny how the legal profession wins either way in this game). Always copy most of their senior management.

Generally, this simple response makes the vast majority of these infringement letters go away. It takes the matter off of the easy pile and puts it on the difficult pile.

I like your response too, no doubt, but obviously a well considered response like yours takes time and effort to prepare – – a lawyer’s spam does not deserve this quality of response.

I believe individuals aren’t taking Microsoft’s rights seriously, or normally how crucial IP rights are for development. How long has it been considering that we have a brand-new letter included to the alphabet? Unless developers have some method making cash the letters they produce, the alphabet will never ever grow.

Pure gold, Steve. I made fun of this one:
” Given that Microsoft sets the requirement for a lot of things in the computer system market, I hope we do not open the mail next week and discover Netscape suing us for utilizing the letter “N”, rapidly followed by Sun’s insurance claim on “J”. Possibly we can send all 26 letters to some sort of requirements committee for arbitration.”